When parliament begins the work of considering nominees for Chief Justice, Deputy Chief Justice, and Director of Public Prosecutions, members of parliament would do well to consider how the three names reached them when making a determination about their suitability. The nominees for Chief Justice and Deputy Chief Justice went through an unprecedented process of selection that saw all applicants subjected to public and structured interviews for the posts. The nominee for Director of Public Prosecutions, Keriako Tobiko, even though the post is new and powerful, emerged from a closed door process conducted by a panel that was not independent.
The spirit of openness and frankness that guided the selection of candidates for Chief Justice and Deputy Chief Justice should imbue parliament when it considers the nominees this week, or next, depending on how its internal divisions are resolved or suspended.
Newspaper commentators criticized the Judicial Service Commission for the way interviewees were challenged about their academic qualifications, judgments, scholarship, and length of service in the judiciary. The commentators said the style of questioning was intrusive, humiliating, and personal, and for the two top judicial posts, the line of questioning should have been more dignified. Some even suggested that though open interviews are a welcome change in the conduct of public affairs in Kenya, senior lawyers in private practice who qualified to apply for the posts of Chief Justice or Deputy Chief Justice may have been discouraged because of the sharp scrutiny. An alternative would have been head-hunting, they suggest. These suggestions seem to ignore the crisis of confidence facing the judiciary and how best it can be restored.
The judiciary seems to be the slowest of the three arms of government to benefit from the return of multiparty politics about 19 years ago in Kenya to become more democratic and be released from the clutches of the Office of the President. Until August last year, when a new constitution was adopted, the top decision-making body for the judiciary, the Judicial Service Commission, was made up exclusively of people directly appointed by the president. The new constitution has expanded its membership to lawyers elected by the Law Society of Kenya; judges and magistrates elect their representatives to the Commission. The Chief Justice until February this year was directly appointed by the president, even if the president used an informal process of head-hunting. Now the constitution requires the Chief Justice goes through a formal, open, two-stage vetting process before the president finally appoints someone to the post. Finally, Kenya’s judiciary is beginning the process of becoming completely independent, discarding its legacy tied to the country’s dictatorial past.
Questions have been asked whether Kenya is pioneering something new. Look down south to know Kenya is not unique. When South Africa was breaking away from its apartheid past in 1994, its judiciary went through a similar process of rebuilding confidence in the rule of law because it had been ravaged by more than four decades of giving legal justification to the discrimination of South Africa’s majority population. A new apex court was created, the Constitutional Court, just as is the case in Kenya today with its new Supreme Court. South Africa expanded its Judicial Service Commission to make it more independent. The Commission conducted public interviews for the post of Chief Justice as well as judges of the new apex court.
The same openness cannot be said of the panel that interviewed the candidates for the new powerful post of Director of Public Prosecutions. The panel, chaired by the secretary-general of Kenya’s umbrella trade union organization, did not open its interviews to the public. It was made up of representatives of the Office of the President and the Prime Minister, who, in theory, could be the subject of a future prosecution case initiated by the individuals they short-listed.
The panel just announced a long list of candidates, conducted the interviews at the Office of the President, and then announced the top three candidates, none of them litigators in private practice or prosecutors with experience outside Kenya’s jurisdiction. The panel announced the marks they gave the top three ranking candidates, saying they were looking at experience and qualifications. They did not say whether the experience or qualifications they looked for matched the aspirations of the new office to break from the past when politically sensitive cases never progressed far unless the government was intent on suppressing its opposition.
The nominee for Director of Public Prosecutions, Keriako Tobiko, is the immediate past holder of that office when it was under the Attorney General. Tobiko is yet to successfully prosecute any case of grand corruption that has embarrassed the president and serving Cabinet ministers. Instead he and the Attorney General have traded blame with either the police over the quality of investigations or the courts for blocking efforts to trace foreign actors implicated in the cases.
And yet for whoever becomes Chief Justice or the Director of Public Prosecutions, this seemingly long vetting process is just the beginning. For the Chief Justice, there is long to-do list to transform the judiciary that is laid out in a myriad of reports, the latest one being that of a broad-based task force completed in July last year. That task force also made recommendations the incoming Director of Public Prosecutions can do well to implement, key among them is phasing out police prosecutors and recruiting more lawyers as prosecutors.
Indeed it is the best of times, it is the worst of times for Kenya’s criminal justice system.